Citation NR: 9735482
Decision Date: 10/21/97 Archive Date: 10/24/97
DOCKET NO. 92-04 040A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to an effective date earlier than August 26,
1996, for a 100 percent schedular rating for malignant
lymphoma, small lymphocytic, non-Hodgkin’s.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
John Z. Jones, Associate Counsel
INTRODUCTION
The veteran retired from service in August 1968, after
completing more than 21 years of active military service.
This matter has come before the Board of Veterans' Appeals
(Board) on appeal from a rating decision of the Los Angeles,
California, Department of Veterans Affairs (VA) Regional
Office (RO).
This case was originally certified to the Board on the issue
of an increased (compensable) rating for malignant lymphoma,
small lymphocytic, non-Hodgkin’s. In January 1995, the Board
remanded the case to the RO for further development.
Thereafter, by rating decision in October 1996, the RO
increased the evaluation for non-Hodgkin’s lymphoma to 100
percent, effective from August 26, 1996. In a statement
dated in December 1996, the veteran disagreed with the
effective date of this increase. This issue was subsequently
developed for appellate status.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran argues that the 100 percent rating for his
service-connected malignant lymphoma should go back to 1992.
It is requested that any reasonable doubt be decided in favor
of the veteran.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the preponderance of the
evidence is against the claim for an effective date earlier
than August 26, 1996, for a 100 percent schedular rating for
malignant lymphoma, small lymphocytic, non-Hodgkin’s.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran’s appeal has been obtained.
2. In August 1991, the RO established service connection for
malignant lymphoma, small lymphocytic, non-Hodgkin’s and
assigned a noncompensable evaluation, effective December 5,
1990.
3. In January 1992, the RO assigned a retroactive temporary
100 percent evaluation for non-Hodgkin’s lymphoma from
December 5, 1990 through May 31, 1991; the noncompensable
evaluation was reinstated effective June 1, 1991.
4. On VA examination on August 26, 1996, the diagnosis was
“active” malignant lymphoma, stage IV.
5. In October 1996, the RO increased the evaluation for non-
Hodgkin’s lymphoma to 100 percent, effective August 26, 1996.
6. August 26, 1996, the date of the current examination
indicating the presence of an active disease process, is the
date on which it was first factually ascertainable that an
increase in disability had occurred.
CONCLUSION OF LAW
The requirements for an effective date earlier than August
26, 1996, for a 100 percent schedular evaluation for
malignant lymphoma, small lymphocytic, non-Hodgkin’s have not
been met. 38 U.S.C.A. §§ 5107, 5110 (West 1991 & Supp.
1997); 38 C.F.R. § 3.400 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board finds that the appellant's claim is
“well-grounded” within the meaning of 38 U.S.C.A. § 5107.
The Board is also satisfied that all relevant evidence has
been properly developed and that no further action is
required to comply with the statutory duty to assist.
38 U.S.C.A. § 5107.
Factual Background
The veteran filed his original claim for service connection
for non-Hodgkin’s lymphoma in December 1990. In August 1991,
the RO established service connection for malignant lymphoma,
small lymphocytic, non-Hodgkin’s and assigned a
noncompensable evaluation, effective December 5, 1990. In
January 1992, the RO assigned a retroactive temporary 100
percent evaluation for the condition from December 5, 1990
through May 31, 1991; the noncompensable evaluation was
reinstated effective June 1, 1991. The award was based on
evidence showing that the veteran received chemotherapy for
non-Hodgkin’s lymphoma from September 1989 through May 1990.
The treatment was discontinued due to paresthesia.
In September 1992, the RO received VA treatment records
covering the period May 1991 to August 1992. These records
indicate that in December 1991 a history of lymphocytic
lymphoma in recession was noted. On evaluation in the
oncology clinic in May 1992, it was noted that the veteran’s
last chemotherapy treatment had been in May 1990. On
examination, the veteran denied night sweats and weight loss.
The examiner indicated that the veteran had at least stage
III-A non-Hodgkin’s lymphoma with good response to
cyclophosphamide in 1989 and that a lymph node biopsy was
needed. It was noted that he was having a “relapse”. The
assessment was well-differentiated lymphocytic lymphoma.
During follow-up examination in July 1992, the veteran
reported that there had not been a lot of change since his
last oncology clinic appointment in May 1992. Examination
revealed that the veteran was hematologically stable at
present.
At his September 1992 personal hearing, the veteran gave a
history of treatment for his non-Hodgkin’s lymphoma. He
asserted that he had a recurrence of the non-Hodgkin’s
lymphoma and was currently undergoing treatment at a VA
Medical Center. He described his current symptoms as general
weakness, a falling feeling, vertigo and an inability to
bend, lift or walk very much. He also stated that he
experienced weight fluctuation, although his weight was now
stable. See September 1992 hearing transcript.
In August 1995, the RO contacted the veteran and requested
information regarding any VA or private treatment records for
lymphoma since 1992. No response was received from the
veteran.
On August 29, 1996, the veteran was afforded a VA examination
for hematologic and lymphatic disorders. He complained of
always being tired, pain in every part of his body and
variable appetite. Following clinical evaluation, the
examiner indicated that the veteran’s non-Hodgkin’s lymphoma
was active but that it was not clear whether it was causing
any symptoms. The veteran’s general health between acute
attacks was said to be poor. The diagnosis was malignant
lymphoma, Stage IV.
In October 1996, the RO increased the evaluation for non-
Hodgkin’s lymphoma to 100 percent, effective August 29, 1996.
Analysis
Disability ratings are assigned in accordance with the VA's
Schedule for Rating Disabilities and are intended to
represent the average impairment of earning capacity
resulting from disability. 38 U.S.C.A. § 1155. Separate
diagnostic codes identify the various disabilities.
When the veteran first started his appeal in 1991, Diagnostic
Code 7715 indicated that non-Hodgkin's lymphoma was to be
rated as lymphogranulomatosis (Hodgkin's disease) under
Diagnostic Code 7709. 38 C.F.R. § 4.117, Diagnostic Code
7715 (1991). Under Diagnostic Code 7709, a 100 percent
evaluation was assigned for acute (malignant) types or
chronic types with frequent episodes of high and progressive
fever or febrile episodes with only short remissions,
generalized edema, ascites, pleural effusion, or severe
anemia with marked general weakness. A 60 percent evaluation
applied if there was general muscular weakness with loss of
weight and chronic anemia; or secondary pressure symptoms,
such as marked dyspnea, edema with pains and weakness of
extremity, or other evidence of severe impairment of general
health. A 30 percent evaluation applied if there was
occasional low- grade fever, mild anemia, fatigability, or
pruritus.
In 1995, the criteria for evaluating non-Hodgkin’s lymphoma
were revised. See 60 Fed.Reg. 49227 (1995). Under the
current regulations, a 100 percent evaluation is assigned
with active disease or during a treatment phase.
Note: The 100 percent rating shall continue beyond the
cessation of any surgical, radiation, antineoplastic
chemotherapy or other therapeutic procedures. Six months
after discontinuance of such treatment, the appropriate
disability rating shall be determined by mandatory VA
examination. Any change in evaluation based upon that or any
subsequent examination shall be subject to the provisions of
§ 3.105 (e) of this chapter. If there has been no local
recurrence or metastasis, rate on residuals.
38 C.F.R. § 4.117, Diagnostic Code 7715 (1996).
The effective date of an evaluation or a claim for increase
is the date of receipt of that claim, or the date entitlement
arose, whichever is later. 38 C.F.R. § 3.400. The effective
date of an award of increased compensation is the earliest
date as of which it is ascertainable that an increase in
disability has occurred, if application is received within
one year from such date. 38 C.F.R. § 3.400(o)(2).
The veteran contends that the 100 percent evaluation for his
non-Hodgkin’s lymphoma is warranted earlier than August 29,
1996.
In this case, the evidence prior to August 29, 1996, is
devoid of a showing of active lymphoma. The evidence also
does not show the veteran had frequent episodes of high and
progressive fever or febrile episodes with only short
remissions, generalized edema, ascites, pleural effusion, or
severe anemia with marked general weakness. While the
medical records note a possible relapse of non-Hodgkin’s
lymphoma in May 1992, follow-up examination in July 1992
found the veteran to be hematologically stable. In addition,
the Board notes that no additional chemotherapy was
prescribed. In August 1995, the veteran was requested to
identify health care providers who had treated or evaluated
his lymphoma since mid-1992; however, he has failed to reply
to the request. As such, it is not factually ascertainable
that the veteran’s condition warranted a 100 percent rating
under either the old or the new criteria prior to August 29,
1996, the date of the current examination indicating the
presence of an active disease process. Therefore, the Board
concludes that August 29, 1996, is the appropriate effective
date for the award of a 100 percent schedular rating for non-
Hodgkin’s lymphoma. This is the date the RO assigned and it
is in accordance with the governing law and regulation. As
the evidence is not in relative equipoise, there is no
benefit-of-the-doubt to accord the veteran. 38 U.S.C.A.
§ 5107(b).
ORDER
Entitlement to an effective date earlier than August 26,
1996, for a 100 percent schedular evaluation for malignant
lymphoma, small lymphocytic, non-Hodgkin’s is denied.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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